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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
LETTERS PATENT APPEAL NO.76 OF 2007
IN
WRIT PETITION NO. 1741 OF 1998
Sou. Usha w/o. Yashwantrao Pundlik,
R/o. Mahadeo Nagar,
Wadgaon Road, Yavatmal,
Tah. Dist. Yavatmal ... APPELLANT
// VERSUS //
1 The President,
Lokmata Shikshan Prasarak Sanstha,
Mahadeo Nagar, Wadgaon Road,
Yavatmal, Dist. Yavatmal,
2 Shri Devidas Shamrao Gaikwad,
Secretary,
Lokmata Shikshan Prasarak Sanstha,
Mahadeo Nagar, Wadgaon Road,
Yavatmal.
3 The Education Officer (Primary),
Zilla Parishad, Yavatmal ...RESPONDENT
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Mr.N.R. Saboo, AGP for Appellants
Mr. H.A.Deshpande, Advocate for the Respondent Nos.1&2
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
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CORAM : B.P.DHARMADHIKARI, J.
R.B.DEO, J.
DATE : 15.06.2017.
ORAL JUDGMENT (Per B.P.Dharmadhikari, J) :
1 Appellant has reached age of superannuation on
30.6.2010. She claims relief of declaration that refusal of management to permit her to join and perform her duties constituted otherwise termination and she had never resigned from employment. Judgment delivered by School Tribunal on 30.4.1998 holding that she had resigned from service and there was no challenge to that resignation as also, the judgment delivered by learned Single Judge of this Court on 10.02.2006 in Writ Petition No 1741 of 1998 are assailed with contention that it is perverse. 2 Matter was heard for some time on 8.6.2017 and then came to be adjourned today to enable respective counsel to assist the Court in the matter.
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3 Nobody appeared for respondent no. 3 - Education
Officer on that day. There is no appearance even today. 4 The School Tribunal has found appeal barred by limitation and also suffering from vice of non-joinder of necessary parties. It has also held that appellants' services were not terminated by management vide notice dated 12.7.2013. The School Tribunal, therefore, finds that petitioner had resigned from services vide resignation dated 10.4.1993 and there was no challenge to it in appeal before it.
5 With the assistance of respective counsel, we have perused papers. Submission of resignation letter by petitioner on 10.4.1997 is not in dispute. However, the same was not accepted by management and as per notice dated 28.4.1993 served by it upon petitioner, it has specifically mentioned that said letter was placed before committee in Annual General Meeting and after deliberations over the same, it was temporarily rejected. ::: Uploaded on - 19/06/2017 ::: Downloaded on - 20/06/2017 00:30:57 :::
4 jlpa76of07.odt This resignation letter has been referred to as letter No.1. There is reference to letter No. 2 also whereby the appellant has expressed inability to work as Headmistress on account of ill health. Letter No. 2 is of a later date i.e. after 10.4.1993. Impliedly it dilutes stand that on 10.4.1993, the petitioner wanted to resign from her service. 6 On 29.4.1993, she had approached Education Officer, Primary (respondent no. 3) and in it pointed out that she was in service since 7.7.1988. It appears that she gave her explanation in relation to complaint dated 15.4.1993 filed by her employer with Education Officer. She has pointed out her harassment and then also explained that because of previous experience, she had decided not to work under pressure, not to place any signature under pressure and not to accept promotion of Headmistress, even if it is offered. She has also stated that accordingly, she communicated her desire to Management and requested them to make alternate arrangement. She has pointed out that on 29.4.1993, she was on medical ::: Uploaded on - 19/06/2017 ::: Downloaded on - 20/06/2017 00:30:57 ::: 5 jlpa76of07.odt leave and would join as and when doctor declared her fit. In this reply, she has also pointed out that, her refusal to discharge duties of post of Headmistress has been communicated by her on 22.4.1993. She therefore, claimed that charge of remaining absent unauthorizedly without proper intimation was false.
7 Thus, this communication brings on record the latter request made by her on 22.4.1993 refusing to work as Headmistress and impliedly militates with story of her alleged resignation dated 10.4.1993. The fact that Secretary of Management complained to Education Officer on 15.4.1993 and pointed out that she was remaining absent unauthorizedly also reveals that it rules out resignation dated 10.4.1993. That resignation otherwise would have been reflected in this communication. 8 We have already noted Supra that the said resignation was temporarily rejected by the Executive Committee in its meeting.
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9 In this background, when the Appeal Memo as
filed is perused, it shows that her medical leave expired on 30.4.1993 and she attended school on that day alongwith her Joining Report and Medical Fitness Certificate. Secretary retained the same but did not permit her to join and sign Muster Roll, therefore, she forwarded Joining Report to Education Officer. From next day i.e. from 1.5.1993 to 30.6.1993, there was summer vacation. On next working day i.e. on 2.7.1993 she again attended school with Joining Report. She requested Secretary to give attendance Register for signing but he asked her to sign a document already prepared, she refused to sign that document. The two persons named by her then explained that document was compromise between her and the Secretary but she refused to sign it. Muster Roll was not made available for her signature and then, she again submitted letter to Education Officer. On 17.7.1993, she received Secretary's letter dated 12.7.1993 prohibiting her from attending the school and from entering the school ::: Uploaded on - 19/06/2017 ::: Downloaded on - 20/06/2017 00:30:57 ::: 7 jlpa76of07.odt premises. This communication has been termed by her as constituting otherwise termination and on that basis appeal under Section 9(1) of Maharashtra Employees of Private School (Condition of Service) Regulation Act (MEPS), 1977, has been filed.
10 In its judgment, School Tribunal refers to written statement filed by management on 25.10.1993. Management claims that it lodged police complaint against the present respondent on 12.7.1993 and case was registered against her in Court at Yavatmal. There was defalcation of Rs. 35,000/-, because of which respondent did not join on 30.4.1993 and proceeded on leave without handing over charge. On 2.7.1993, she arrived alongwith her son and unknown person, and created terror in school premises, therefore, communication dated 12.7.1993 was given to her and she was asked not to enter school premises without permission of management. That she had sent resignation on 10.4.1993 which was earlier rejected by School Management but subsequently, the Executive ::: Uploaded on - 19/06/2017 ::: Downloaded on - 20/06/2017 00:30:57 ::: 8 jlpa76of07.odt Committee accepted it. The acceptance was on 14.5.1993 and she was accordingly communicated the acceptance on 15.5.1993. Appeal against it could have been filed within 30 days from the date of receipt of that communication. 11 Judgment of School Tribunal also shows that Education Officer (Primary) filed written statement on 24.11.1993 and stated that alleged letter of recogniton was not as per Rule 40 of MEPS Rules, 1981.
12 It is, in this background, that appeal was taken up by School Tribunal. Consideration in para No.20 of its judgment by School Tribunal shows that appeal should have been filed within 30 days of 30.4.1993, when she was not permitted to sign on Muster Roll. She filed appeal on 28.7.1993 i.e. beyond period of limitation. School Tribunal found that she did not explain delay from 1.5.1993 to 30.6.1993. School Tribunal also appears to have accepted the story that on 2.7.1993, she visited the school to create atmosphere of terror therein.
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13 These findings show that a date not pleaded as date
of termination either by employee or then by employer has been used by the School Tribunal to hold that appeal is barred by limitation. It is nobodys' case that there was any termination on 30.4.1993 or any cause of action accrued on that day.
14 The discussion in paragraph 21 of judgment is regarding alleged resignation dated 10.4.1993 and its acceptance on 15.5.1993. The original resignation letter is not available for perusal of this Court. Its typed copy forms part of record. That resignation was not accepted by management initially as communicated by it on 28.4.1993. At this stage, learned counsel for management has made available original resignation letter for our perusal. It is typed on a piece of paper admeasuring 5 inch x 5 inch and entire text appears on upper half portion of the document. Even endorsement forwarding copy to Education Officer is in that part. Below it, in lower half and on right hand side, ::: Uploaded on - 19/06/2017 ::: Downloaded on - 20/06/2017 00:30:57 ::: 10 jlpa76of07.odt there is a seal with some words. On left hand side word "yours" is typed in vernacular and at some distance from it, there is signature in Marathi. Immediately below signature, there is a seal of Headmistress with name of school. 15 In the situation, we find it necessary to seize said original Resignation Letter. Accordingly, it is retained on record of this L.P.A.
16 Further perusal of the judgment reveals that after receipt of notice of Secretary dated 28.4.1993, present respondent replied to the allegation therein by registered A/d letter dated 5.5.1993 through her advocate. School Tribunal has found that this appellant was aware on that day that her services were already terminated. Thereafter, School Tribunal shifts to consideration of story of otherwise termination pleaded by respondent and about the notice served by Secretary upon her on 12.7.1993. ::: Uploaded on - 19/06/2017 ::: Downloaded on - 20/06/2017 00:30:57 :::
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17 The facts noted and even findings of School Tribunal
clearly show that resignation allegedly dated 10.4.1993 was all the while in dispute before School Tribunal. The findings that said resignation was not in dispute as reached by learned Single Judge of this Court in judgment dated 10.2.2006, is therefore, unsustainable. 18 The management claims that it had accepted resignation on 15.5.1993. The Resolution of Executive Committee accepting the resignation has not been produced. There is no express communication sent by management to respondent informing her that her resignation has been accepted, and therefore, she need not report at her school. No such communication is produced by management at any point of time either before School Tribunal or then even before this Court. Conduct of respondent employee shows that after her medical leave, when she reported on 30.4.1993 with joining report and medical certificate, documents were retained but she was not permitted to join, she therefore, approached Education ::: Uploaded on - 19/06/2017 ::: Downloaded on - 20/06/2017 00:30:57 ::: 12 jlpa76of07.odt Officer. Thereafter, school closed for summer vacation and reopened on 2.7.1993. On 2.7.1993, again she has reported back in the school and was not allowed to perform her duties. Thereafter, the Secretary of the management has asked her not to report on 12.7.1993. In this scenario, treating that communication as otherwise termination, can not be said to be misconceived. Within 30 days from that date, she has filed the appeal before School Tribunal, Appeal therefore, can not be said to be time barred. 19 We therefore, find consideration of controversy by School Tribunal as also by learned Single Judge of this Court, erroneous and unsustainable.
20 Today parties have produced before this Court a Compromise Petition. It is signed by appellant, her counsel as also counsel for respondent nos. 1 & 2 - Management and by respondent no. 2 - Secretary. It is supported by affidavit of the appellant. As per this compromise, appellant has agreed not to claim arrears of salary for the ::: Uploaded on - 19/06/2017 ::: Downloaded on - 20/06/2017 00:30:57 ::: 13 jlpa76of07.odt period for which she was out of employment i.e. for period upto date of her termination. The management and appellant have agreed to submission of pension case of appellant to respondent no. 3 - Education Officer. It is for the respondent no. 3 - Education Officer to process it thereafter as per law.
21 In view of these developments and the fact that appellant has already crossed the age of superannuation about 7 years back, we find nothing wrong in the compromise as reached between parties. We accordingly, accept the compromise.
22 The otherwise termination of appellant on 12.7.1993, is therefore, quashed and set aside. As she can not be reinstated, it is declared that her absence from 30.4.1993 till her superannuation shall be treated as continuous employment for all purposes. However, appellant will not be paid any back wages / salary for said period. Respondent nos. 1 and 2 shall prepare her pension case ::: Uploaded on - 19/06/2017 ::: Downloaded on - 20/06/2017 00:30:57 ::: 14 jlpa76of07.odt within four weeks from today and forward the same to respondent no. 3. Education Officer shall process it further as per law within next eight weeks.
Accordingly, we partly allow L.P.A. and make Rule absolute. No cost.
JUDGE JUDGE
belkhede, PA
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